Comparative Tort Law

general courses

Students deciding to participate in the lecture should have a basic knowledge of the European private law, especially the law of obligations (including the law of torts) and the general knowledge of the basic legal systems distinguished in the world in the field of private law. This applies to the basic knowledge of legal history (especially Roman law of obligations and its reception in the European legal tradition). Therefore, the students should have participated or should currently participate in lectures and classes devoted to the law of obligations.

Classroom

The lecture will analyse basic problems related to the law of torts in comparative perspective. The students will discuss the most characteristic differences between the approach of different legal systems to such issues as premises of tortious liability (e.g. unlawfulness, fault, damage or causation) or its relation to contractual and criminal liability. The aim of the course is to present the most interesting solutions of the law of torts in comparative perspective, present their origin, historical and social preconditions, as well as their development related to social and economical changes.

1. Introduction. Monistic and dualistic systems of liability for damages. Different systems of the law of torts. The solutions of the law of torts in the Roman law and its impact on civil law and common law countries. Globalization and Europeanization of the law of torts (e.g. Principles of European Tort Law and Draft Common Frame of Reference).

2. The basic premises and normative limits of tortious liability developed in historical evolution. Social justification of tortious liability. The relation between tortious and contractual liability.

3. The concept of damnum iniuria datum in Roman law and its development in the European legal tradition. The concept of fault and its elements. The notion of wrongfulness and its sources.

4. Liability for omissions (on the example of tortious liability for failure to provide assistance). Duties of care in the law of torts.

5. The unlawfulness of acts or omissions causing the threat of damages. Preventive claims in the law of torts.

6. The situations when unlawfulness is excluded (legitimate self-defence, necessity, activity at own risk etc.).

7. The concept of fault. Accountability as a premise for assigning fault. The degrees of fault (intentional fault, gross negligence, unintentional fault). The methods of determining due diligence; the due diligence of professional entities.

8. The causation on the example of the concept of adequate causation. Interference between adequate causation and fault. Liability in cases of uncertain causation. Types of causality (e.g. alternative and cumulative causation, causa superveniens). Multiple tortfeasors.

9. Damages. Types of damages (e.g. property damages, non-property damages and pure economic loss). Methods for determining the amount of damages (on the example of pecuniary damages resulting from traffic accidents and non-pecuniary damages in the case of bereavement claims).

10. Contributory negligence. The obligation to minimise own damage.

11. Strict liability (on the example of liability for traffic accidents and effusum vel deiectum).

12. Liability for damages caused by others. Liability for minors and mentally ill. The scope of liability for the subordinates (on the example of the historical evolution of physician’s liability).

13. The inheritance of tort claims (on the example of inheritance of claims for compensation for non-pecuniary damages).

14. Prescription and expiration of tort claims.

15. Alternative compensation systems in tort law (on the example of medical cases).

Before each lecture students will receive materials related to the topic of that lecture, including translations of Roman law sources and articles of the most important and interesting European civil codes, as well as texts of European model solutions - PETL (Principles of European Tort Law) and DCFR (Draft Common Frame of Reference). All texts from Polish, Latin, German, French and Italian will be translated into English. The presentation of a given topic by the lecturer will be combined with the discussion over those materials.

During the lecture students will analyse different cases usually based on most interesting factual situations that appeared in Roman law sources, in the case law of various legal systems, as well as considered in the commentaries to European model solutions.

The lecture would be useful for those students, who would like to prepare their master's thesis on the law of torts – to select the subject of it and to collect additional literature and jurisprudence necessary to prepare historical and comparative chapters of such work. It would be also very useful for students who are planned to begin PhD studies in the field of private law due to the fact that the lecture will enable them to become familiar with the comparative law as a necessary method of scientific research.

Basic textbook (with cases):

- T. Kadner-Graziano, Comparative Tort Law – Cases, Materials, and Exercises, New York 2018

Translation of European provisions concerning tort law:

- E. Karner, K. Oliphant, B. C. Steininger, European tort law - basic texts, Wien 2018

Translation of cases concerning tort law with commentaries:

- W. van Gerven, J. Lever, P. Larouche, Cases, Materials and Text on National, Supranational and International Tort Law, Oxford-Portland 2000

- B. Winiger, H. Koziol, B. A. Koch, R. Zimmermann (ed.), Digest of European Tort Law, Essential Cases on Natural Causation, Wien-New York 2007

- B. Winiger, H. Koziol, B. A. Koch, R. Zimmermann (ed.), Digest of European Tort Law, Volume 2, Essential Cases on Damage, Berlin 2011

- B. Winiger, E. Karner, K. Oliphant (ed.), Digest of European Tort Law, Volume 3, Essential Cases on Misconduct, Berlin 2018

Texts of European model solutions with commentaries:

- Principles of European Tort Law. Text and Commentary, Wien-New York 2005

- C. von Bar (ed.), Principles of European Law. Non-Contractual Liability Arising out of Damage Caused to Another, Oxford 2009

Additional reading materials - basic studies on comparative tort law:

- R. Zimmermann, The Law of Obligations – Roman Foundations of the Civilian Tradition, Oxford 1996

- W. Dajczak, T. Giaro, F. Longchamps de Bérier, Prawo rzymskie. U podstaw prawa prywatnego, Warszawa 2018

- C. von Bar (ed.), The common European Law of Torts, vol. I (Oxford 1998), vol. II (Oxford 2000) – translation of: Gemeineuropäisches Deliktsrecht, 1996-1999

- C. Van Dam, European tort law, Oxford 2013

- Unification of Tort Law, vol. 1-10, Kluwer Law International 1996-2005, including:

-- Unification of Tort Law: Wrongfulness, ed. H. Koziol, Kluwer Law International 1998

-- Unification of Tort Law: Causation, ed. J. Spier, Kluwer Law International 2000

-- Unification of Tort Law: Damages, ed. U Magnus, Kluwer Law International 2001

-- Unification of Tort Law: Liability for Damage Caused by Others, ed. J. Spier, Kluwer Law International 2003

-- Unification of Tort Law: Fault, ed. P. Widmer, Kluwer Law International 2005

- H. Koziol, B. Steininger (ed.), European Tort Law (Yearbooks 2001-2017)

The materials for the lecture and additional literature concerning specific topics will be provided by the lecturer and available for the participants on the University e-learning platform (Kampus). The students will also have the possibility to access the Eurotort database containing case law of European countries regarding tort law.

Knowledge:

Students will become acquainted with the solutions adopted in other legal systems and to understand the most difficult theoretical concepts related to the law of torts, their genesis and historical development. They will be able to point out what political and economical factors lead to creation of differences between particular legal systems, as well as why in the jurisprudence the similar cases are solved in similar way regardless of many differences in the wording of specific regulations.

Skills:

The main effect of the lecture is to provide their participants with the ability to critically analyze the opinions expressed in the literature and the jurisprudence in the various legal systems. Moreover, students will acquire and develop research skills, especially in the fields such as history of private law, European private law and comparative law. They will also become familiar with comparative law as a method of scientific research and improve their writing and presentation skills. The discussion conducted during the course shall encourage students to independently acquire knowledge and skills in the field of tort law in the future.

The students will be assessed individually on the basis of their attendance, preparation for the lecture and their activity during the lecture. They will need to prepare a short essay (circa 8-10 pages) on a selected topic accepted by the lecturer based on the materials given to them during the lecture or available for them in the Eurotort database.